Andrew Wallace (Fisher, Liberal Party) Share this | Hansard source

The breakdown of a significant relationship and then the process of separation in a marriage or a long-term de facto relationship is widely acknowledged to be one of the most stressful and difficult periods of any individual's life. Repeated studies have found a direct association between divorce or separation, increased anxiety and depression and increased risk of alcohol and drug abuse. Other research suggests that any family separation can have a substantial impact on personal wellbeing for years afterwards. In many cases, unfortunately, mental illness in one or both partners is a contributing factor to bringing a case to the Family Court in the first place. Mental illnesses can be associated with irritability, hostility, a reduction in personal responsibility and withdrawal from others—all of which can put considerable strain on a relationship.

A multinational study of mental disorders, marriage and divorce published in 2011 by the University of Groningen, among others, found that 18 different mental disorders studied increased the likelihood of relationship breakdown by between 20 per cent and 80 per cent. In fact, as many as 90 per cent of marriages in which one partner suffers from bipolar disorder end in divorce. Mental illness can also make disputes more difficult to resolve and increase the likelihood that a relationship breakdown will lead to court proceedings.

Poor mental health is often evident among families who come to the Family Court before these proceedings even begin. The Family Court's website puts it very well, where it says:

The reality is that by the time people reach the courts, stress, despair, anxiety, depression and other forms of mental illness are common, along with anger and frustration, and frequently a sense of powerlessness.

However, the necessity in too many cases of going through an arduous, stressful, arcane, highly expensive and unnecessarily lengthy process of litigation make all of these mental health impacts considerably worse.

Each year for the past five years, the Family Court and Federal Circuit Court have received a combined 22,000 applications for final orders in respect of family law matters. Yet the backlog of cases pending in the Family Court has grown over the same period from 17,200 to 21,000 applications, with the average age of those cases now older than 12 months. In 2016-17 alone, the two courts finalised a combined 600 fewer family law matters than they received. This deficiency has inevitable and highly damaging results for those with cases before the courts. Since 2012-13, the national median time to trial has increased from 10.8 months to 15.2 months in the Federal Circuit Court, and from 11½ months to 17 months in the Family Court. Vulnerable families, many going through the most stressful time of their lives, are waiting well over a year in limbo for their case to be heard. Now, I actually suspect that the reality is it's even longer than that. Importantly, these delays are calculated from the time the application is brought for a hearing, not from when the relationship began to fracture, and it doesn't include that long period of time when the courts are dealing with interlocutory matters.

I think we can all easily imagine that when it comes to access to your children or to your future financial security, every day of uncertainty is intensely stressful. For children, who cannot fully understand the process, it's even worse. For too many, what can be years of this intense uncertainty, anxiety and stress is simply unendurable. We must act to change this situation and to get cases resolved much more quickly. In this matter, as is so often the case in government, simply throwing money at the problem will not make a difference for families. It will not solve the underlying inefficiencies which are inherent in the structure of the current arrangements. We know this because, despite the number of family law applications for final orders remaining approximately the same over recent years, and without any material reduction in the courts resources, the rate of cases being finalised by the court has been in consistent decline.

The government has identified clear and unambiguous inefficiencies in the system which would allow us to turn the situation around and make meaningful gains for families. It has been estimated that the structural reforms laid out in this bill would improve the efficiency of the court by as much as a third, with time for as many as 8,000 additional matters every year. Specifically, the bill before the House directly addresses four of the most important inefficiencies in the existing system and will also seek to set in motion cultural change which will pay further dividends in the years to come.

The first and most striking of these inefficiencies is the huge delay and additional costs caused by the number of cases which are currently transferred between the two existing courts. In 2016-17, almost 1,200 families had their disputes transferred from one court to the other. In each of these cases, the individuals involved had to restart their proceedings from scratch, playing out the entire interlocutory procedures again, following the rules and procedures of the new court. In the case of those unlucky enough to be transferred to the Federal Circuit Court, they face an average delay of 11.1 months for the dispute even to come before the court. Not only does this dramatically extend the length of time taken to resolve the specific disputes which are transferred but it creates a substantial number of what are, in effect, redundant extra cases which were being heard unnecessarily in the wrong court. This uses up precious court time which could be deployed in hearing more disputes.

This bill brings these two courts together under a single, unified structure: the Federal Circuit and Family Court of Australia, or the FCFC. This single administrative structure would retain two divisions, allowing disputes of different levels of complexity to be heard in the most appropriate venue. However, the bill allows that the two divisions would be led by the same Chief Justice and deputy chief, who would be able to make a single, early and effective judgement as to which division a dispute should be heard in. This would eliminate the need to transfer disputes between courts in the vast majority of cases and would also allow a single case listing to be managed efficiently from application to finalisation by a single registry. These reforms alone could result in the courts finalising up to an additional 3,500 family law matters every year.

As I mentioned, presently the Federal Circuit Court and the Family Court of Australia operate under different rules of court, practices, procedures and forms. This not only is a source of considerable delay when cases do have to be transferred from one court to the other but it further increases the cost and complexity and therefore the length of the process for families. Family lawyers must be familiar with the processes and application requirements of two separate courts, and they must spend time assessing which of the courts is most appropriate for a given dispute. It is more difficult for families to know what to expect and what the process will cost, while in the administration of the court itself separate court registry staff are needed with expertise in each set of procedures, reducing overall capacity to deal with cases.

This bill would deal with this issue by facilitating the appointment of a single Chief Justice and Deputy Chief Justice and would place into the Chief Justice's hands the ability to set the rules of court for both divisions. It would also require the appointment of a single chief executive officer with responsibility for the administrative affairs of both divisions of the court. The bill specifically provides that even if the Chief Justice and Chief Judge, being the heads of the two divisions, are different individuals, they must work cooperatively to achieve a common approach to case management, including common practices and procedures, rules of court and their forms. It's estimated by the Attorney-General's Department that these streamlined processes and single approach to the administration of the court could result in up to 3,000 additional family law matters being finalised each and every year.

The bill also addresses the inequity, suffering and impact on children caused by one or other party vexatiously using the procedures of the court to extend the dispute beyond what is necessary. Though not common, the motives of revenge and the passionate desire to win at all costs, which can be uniquely inspired by a relationship breakdown, combined with the inefficiencies in the current court's operation, can leave the system vulnerable to intentional extension and unnecessary extension of proceedings. This bill will help to reduce the potential for these damaging behaviours by providing that the overarching purpose of practice and procedure provisions in both divisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and as efficiently as possible.

Further, the bill provides where a lawyer has failed to comply with his or her statutory duty to aid in the just resolution of disputes as quickly, inexpensively and efficiently as possible, the judge may order that the lawyer bear the costs of certain proceedings personally. This change to the stated purpose of practice and procedure, the new provisions surrounding costs and the direction towards harmonisation of rules and of court and case management would, in my view, over time tend to encourage a cultural change in the conduct of litigation in these courts. This bill and the debate we have had in this place will make it clear that the FCFC and the practitioners who appear before it must be focused on resolving disputes as quickly, inexpensively and efficiently as possible.

Finally, at present, despite the fact that appeals from the Federal Circuit Court to the Family Court can be heard by a single judge, 75 per cent are in fact heard by a full bench of three Family Court judges. There are inconsistencies with this approach. In the Federal Court, for example, 88 per cent of appeals in general law matters are heard by a single judge. This bill, therefore, amends the Federal Court of Australia Act to establish a new family law appeal division in the Federal Court of Australia and, critically, requires appeals from the FCFC (Division 2) to be heard by a single judge, unless a judge determines a full bench is required. It's estimated that up to 1,500 additional family law matters could be finalised each year through this streamlined management of appeals. If even just a quarter of the estimated efficiency gains from these measures are realised then the court will be able to return to finalising more cases than it receives. It will begin to reduce the huge backlog which is having such a detrimental effect on the wellbeing and mental health of tens of thousands of Australians.

These reforms have the potential to transform the efficiency of our family law system and they'll do so at a net cost of only $1 million over the forward estimates. In the long term, these changes will ensure our family law system costs less. This is what good government is all about—cost effectiveness, efficiency and making a difference with practical and pragmatic reform for all Australians.

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